“It is emphatically the province and duty of the judicial department to say what the law is.” – Chief Justice John Marshall in Marbury vs. Madison, U.S. Supreme Court (1803).
City and county officials in San Francisco, in Portland, Ore., and in New Palz, N.Y., have ignored that two-century-old American principle by issuing marriage licenses to gay and lesbian couples based solely on their own interpretations of state law.
Didn’t they learn what the rest of us learned in school? That we let the courts interpret laws?
I have supported the Massachusetts Supreme Judicial Court’s decision upholding same-sex marriages and opposed President George W. Bush’s call for a U.S. Constitutional amendment to ban such unions, but I can’t support any action by local officials to interpret state law to fit their own beliefs, especially, when as in Portland, those local officials make their decisions in apparent violation of state open-meetings laws.
I don’t usually agree with the type of group that has brought suit against the Multnomah County (Ore,) Commissioners, but I know that a local board can not interpret state law by itself and can make a decision only in a duly announced public meeting.
Now Seattle Mayor Greg Nickels has proposed a city ordinance that would recognize same-sex marriages performed in other states. That violates Washington state law, which defines marriage as a male-female union. The Mayor believes, probably correctly, that this violates Article IV Section 1, clause 1 of the U.S. Constitution (“Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.”), but such a decision should be made by a court.
These local officials, who say they are working for equality, are probably hurting the cause they believe they are advancing.
King County denied marriage licenses Monday to several same-sex couples. County Executive Ron Sims said that he had no choice but to follow state law, but he invited a lawsuit to test the law’s constitutionality.
Sims said, correctly, that he and other County officials have no choice but to follow state law. He said he had rejected the idea of defying state law by allowing same-sex couples to marry, saying, “I’m not in a position to choose which laws I wish to enforce and which ones I don’t. In fact, I think that is a very dangerous precedent.”
Washington’s marriage laws should only be changed by vote .of the people or their representatives or by a court ruling that it is unconstitutional.
Pressure on the primary
After the state Senate passed the qualifying primary, which would qualify the top two candidates from the primary to the general election, we expected pressure from political-party organizations on State representatives to reject the qualifying primary in favor of a partisan primary.
I hear that some local Democratic legislators got calls last week from 1st District Congressman Jay Inslee on behalf of State Democratic Chairman Paul Berendt, who wants them to oppose the qualifying primary as a replacement for the unconstitutional blanket primary.
Everyone had expected opposition from Berendt, who has made no secret of his opposition to the qualifying plan.
But, I’m surprised that Inslee would be so partisan. Inslee is one of many Washington office-holders who have thrived under the blanket primary system. I’ve voted for Inslee every time he has run in this district, but I won’t be able to do it again if he works to take away my political independence.
It’s time for the Democrats to find another candidate or risk losing the seat.
‘Cajun’ misconceptions
Daily newspapers have called the system approved by the state Senate, and now by the House, a “Louisiana-style” primary. That’s a misnomer because, unlike the Louisiana system, which puts all candidates on a general-election ballot, with a runoff if no one gets a majority, the “qualifying primary” would give us a primary that would qualify the top two candidates for November.
Then, last week, Democratic State Chairman Berendt and Republican State Chairman Chris Vance combined to write an article in the Seattle Times that contained several more misconceptions. First, they said that what they support is an “open” primary. What they write about is the “Private-Choice Primary” alternative that has been before the House of Representatives, a system that would require voters to pick the ballot of one party but not have their choice recorded.
Until the last days of the legislative session. the party organizations had opposed this system in favor of one that would let the parties know who votes in their primaries. In fact, after the House passed a bill supporting the qualifying primary with the private-choice plan as an alternative in case courts find the qualifying primary unconstitutional, Vance said the Republican Party would ask the courts not only to toss out the qualifying primary but also to change the private-choice plan to make the voters’ ballot choices public.
Second, Berendt and Vance say that the proposed qualifying primary is unconstitutional although the U.S. Supreme Court has written in favor of such systems and the State attorney general has advised Legislators that it is constitutional.
Third, they say that their plan is the way almost all states conduct primaries, giving Oregon and Idaho as examples, but those are states that require party registration.
Finally, they say that the qualifying primary will lead to nominating conventions to pick party-endorsed candidates, But, again, the attorney general can point to court opinions that the state has the right to determine who uses a particular party name on the ballot. Maybe it will lead to endorsements through conventions, but a qualifying primary would simply allow people to choose among both endorsed and unendorsed candidates.
Finally, Berendt and Vance argued that the proposed system would hurt small parties. I can’t believe that the heads of the Democratic and Republican parties are sincerely concerned about minor parties. In fact, it will give us a one-on-one general election that will force us to give someone a majority in November. And, in the 7th Congressional District, where Democratic Congressman Jim McDermott rarely has a Republican opponent, it would give him one viable minor-party opponent instead of two or three with no chance.
We’d like to know what you think. Send comments to:
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Lynnwood, Wash. 98036
E-mail: entopinion@heraldnet.com
Fax: 425-774-8622
Evan Smith is the Enterprise Forum editor.
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